Supreme Court New South Wales

• Medium Neutral Citation: Application of Michael Bar-Mordecai [2014] NSWSC 414
• Hearing dates: On the papers
• Decision date: 11 April 2014
• Jurisdiction: Common Law
• Before: Garling J

Decision

(1) The application for leave to commence proceedings pursuant to s 14 of the Vexatious Proceedings Act 2008 contained in the Summons filed 18 October 2013 is dismissed.

• Catchwords: PROCEDURE - Vexatious Proceedings Act 2008 - Application for leave to institute proceedings - Ordinary Procedure - Whether proceedings to be instituted vexatious or lack prima facie ground - Proceedings vexatious - No matter of general principle
• Legislation Cited: Supreme Court Act 1970; Uniform Civil Procedure Rules 2005; Vexatious Proceedings Act 2008
• Cases Cited: Application of Michael Bar-Mordecai 2013] NSWSC 1250; Application of Michael Bar-Mordecai [2012] NSWSC 501; Attorney-General in and for the State of NSW v Bar-Mordecai [2013] NSWSC 129; Attorney-General v Bar-Mordecai [2005] NSWSC 142; Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130; D'Orta Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1; R v Skinner (1772) Lofft 54 at 56; 98 ER 529
• Category: Principal judgment
• Parties: Michael Bar-Mordecai (P)
• Representation: Counsel: In person (Applicant)
• File Number(s): 2013/314559

Judgment - APPLICATION UNDER VEXATIOUS PROCEEDINGS ACT 2008

1 On 18 October 2013, Michael Bar-Mordecai, filed a Summons in which he claims the following relief:

"1. An order that the plaintiff be granted leave to file a Statement of Claim against Dr [XY] for medical negligence.

2. Costs."

2 In support of that Summons, Mr Bar-Mordecai has filed two affidavits, both sworn on 18 October 2013.

3 In addition to these affidavits, on 1 November 2013, Mr Bar-Mordecai filed submissions which related to his Summons and application.

Vexatious Litigant

4 The applicant Mr Bar-Mordecai is a vexatious litigant.

5 On 24 February 2005, Patten AJ made an order pursuant to s 84(1) of the Supreme Court Act 1970, with respect to Mr Bar-Mordecai, in the following terms:

"1. That Michael Jacob Bar-Mordecai shall not, without leave of this Court institute proceedings in any Court.

2. That any legal proceedings instituted by Michael Jacob Bar-Mordecai, in any Court before the date of this order, shall not be continued by him without leave of this Court."

There were other consequential orders: Attorney-General v Bar-Mordecai [2005] NSWSC 142.

6 On 1 December 2008, the Vexatious Proceedings Act 2008 (the "VP Act"), commenced. Orders pursuant to s 84 of the Supreme Court Act, which were in existence at that time, are now taken to be, and to have effect as if the orders are, a vexatious proceedings order made under s 8 of the VP Act.

7 As a result, the VP Act applies to Mr Bar-Mordecai, which means that should he wish to institute any proceedings, then he must do so in accordance with the legislative scheme set out in the VP Act.

8 I have previously expressed my conclusions as to that legislative scheme, and the way in which applications under the VP Act are to be dealt with. There is no need for me to repeat those conclusions here. They can be found in the Application by Michael Bar-Mordecai [2012] NSWSC 501 at [9]-[20].

9 As those conclusions show, the first step to be considered by the Court is whether to grant leave pursuant to s 16(1) of the VP Act to serve the Summons and affidavits on the "relevant persons".

10 In considering the application by Mr Bar-Mordecai for leave to commence proceedings under the VP Act, it is open to, and appropriate for, the Court, at this stage, when considering whether to make orders under s 16(1) of the VP Act, to consider whether having regard to the provisions of s 15 of the VP Act, the Summons for leave to commence proceedings must be dismissed.

Submissions of the Applicant

11 Consistently with the Court's practice, on 22 October 2013, the Common Law Case Management Registrar directed the applicant, Mr Bar-Mordecai, to provide the Court with all written submissions upon which he wished to rely with respect to the application.

12 On 1 November 2013, Mr Bar-Mordecai filed short submissions. In their entirety they are as follows:

"1. In Bar-Mordecai ex parte matter no. 2013/314559 Leave to file a Statement of Claim against Dr XY, on the basis of the expert medical opinion of Dr Samuell's report, is an incompetent application, and must be dismissed pursuant to s 6(c) of the Vexatious Proceedings Act, as Dr Samuell's report does not provide a prima facie ground for the application.

2. The specialist report is purposely misdirected not to stipulate or find that Dr XY committed medical negligence in spite of the evidence to the contrary.

3. The [applicant] requires the Supreme Court to dismiss the application, so that action can be instituted by way of leave against the first Specialist Psychiatrists who conspired to give negligent opinion evidence to pervert the course of justice and not facilitate the filing of the Plaintiff's Statement of Claim against Dr XY with the irrefutable medical negligence evidence at hand, and the ability of each medical specialist to comply with the 'but for' rule and s 31.3 of the UCPR."

Discernment

13 I am satisfied that Mr Bar-Mordecai's application for leave to institute proceedings must be dismissed pursuant to s 15 of the VP Act.

14 My reasons for this conclusion include, but are not limited to, those which follow, which are more than sufficient as a basis for the orders.

15 First, Mr Bar-Mordecai, the applicant, accepts that the proceedings, for which he seeks leave to proceed, would if instituted, be instituted without reasonable grounds as that term is used in s 6(c) of the VP Act. Accordingly, he accepts that the proceedings would be vexatious proceedings and he is not entitled to succeed in his application.

16 Secondly, the Court has, on two occasions, declined to grant leave to Mr Bar-Mordecai to commence proceedings against Dr XY. Schmidt J on 27 February 2013, refused him leave: Attorney-General in and for the State of NSW v Bar-Mordecai [2013] NSWSC 129. On 5 September 2013, in a judgment published on that day, I also refused Mr Bar-Mordecai leave to commence proceedings against Dr XY: Application of Michael Bar-Mordecai [2013] NSWSC 1250. There is no additional material provided on this application of a kind which would permit proceedings to be brought.

17 Thirdly, the proposed pleading includes a claim that Dr XY's breach of duty of care includes his conduct as a witness giving evidence, both in writing and orally, at Medical Tribunal hearings into whether the applicant's application for re-registration should be determined favourably to him. The proposed proceedings claim that the opinions expressed in evidence by Dr XY, which amounted to a breach of his duty, constituted a cause of the injury, loss and damage sustained by the applicant.

18 Since the decision in R v Skinner (1772) Lofft 54 at 56; 98 ER 529, there has been embedded in the common law a principle of immunity of a witness from suit. In Skinner, Lord Mansfield said at 530:

"... neither party, witness, counsel, juror or judge can be put to answer, civilly or criminally, for words spoken in office."

19 In Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130, Starke J said at 140:

"No action lies in respect of evidence given by witnesses in the course of judicial proceedings however false and malicious it may be, any more than it lies against judges, advocates, or parties in respect of words used by them in the course of such proceedings or against jurors in respect of their verdict."

20 In the same case, Williams J (with whom Rich ACJ agreed) said at 149:

"It is clear law that a witness cannot be sued in a civil action in respect of anything which he has said in the course of his examination in the witness box."

21 Most recently, the High Court of Australia in D'Orta Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 said at [39] this:

"No action lay, or now lies, against a witness for what is said or done in court. It does not matter whether what is done is alleged to have been done negligently or even deliberately and maliciously with the intention that it harmed the person who would complain of it. The witness is immune from suit and the immunity extends to preparatory steps."

22 A part of the proposed proceedings is bad in law because Dr XY is immune from suit with respect to his conduct as a witness. As the proceedings are presently intended to be pleaded, that part of the claim is an ineluctable component.

23 As a consequence, in the form presently proposed, the whole of the claim is bad in law, and would, if filed, be an abuse of process. Thus, I am satisfied that the proposed proceedings would if instituted be vexatious proceedings within the meaning of the VP Act.

24 Finally, the form and content of the proposed Statement of Claim is such that, if filed, it would be likely to be struck out pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005. Accordingly, it would be futile to grant the leave sought.

Order

25 I make the following order:

(1) The application for leave to commence proceedings pursuant to s 14 of the Vexatious Proceedings Act 2008 contained in the Summons filed 18 October 2013 is dismissed.

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Decision last updated: 11 April 2014